Request By:
Calvin R. Tackett
Attorney for Knott County Water District
Opinion
Opinion By: Daniel Cameronm,ATTORNEY GENERAL; Carmine G. Iaccarino, Charles A. English,Assistant Attorneys General
Opinion of the Attorney General
The Knott County Water District asks whether a commissioner on the Knott County Water District's Board of Commissioners may also serve as a county road foreman or if those positions are incompatible. For the reasons below, it is the Attorney General's opinion that, under the facts presented here, no incompatibility prevents the commissioner on the Knott County Water District's Board of Commissioners from simultaneous employment as a county road foreman.
Under Kentucky law, incompatibility arises under the Constitution, statutory law, and common law. First, Section 165 of the Kentucky Constitution delineates the scope of constitutional incompatibility:
Ky. Const. § 165. The General Assembly also has enacted KRS 61.080, which makes certain offices incompatible with other offices. Among other things, KRS 61.080 prohibits any person appointed as an officer of a special governmental entity from serving concurrently in an appointed office of another special purpose governmental entity, KRS 61.080(5), or in a state office, KRS 61.080(6). And under Kentucky law, a water district is a "special purpose government entity." 1A member of a water district's board of commissioners, therefore, may not serve concurrently in an "appointed office of another special purpose governmental entity" or in a "state office."
If the position of county road foreman is not an "office," an incompatibility analysis under these provisions is simple because there would be no constitutional or statutory incompatibility. "As Chief Justice John Marshall noted nearly two hundred years ago, although an office is 'an employment,' it does not follow that every employment is an office."
Clark Cty. Att'y v. Thompson , 617 S.W.3d 427, 431 (Ky. App. 2021) (quoting
United States v. Maurice , 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)). To determine whether an "employment is an office," there are five "indispensable" elements that must be considered.
Howard v. Saylor , 204 S.W.2d 815, 817 (Ky. 1947). The position (1) "must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.'" Id.
According to the Water District, Knott County's road foreman is salaried, is hired by and reports to the county/judge executive, and is tasked with maintaining all county roads and overseeing other county road employees. Considering the elements enunciated in Howard , the county road foreman at issue is not an "officer." The position is not created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature. The position does not possess a delegation of a portion of the sovereign power of government. The powers conferred, and the duties to be discharged, are not defined by the Legislature. Rather than performing the duties independently and without control of a superior power, the road foreman reports to the county judge/executive and serves at his pleasure. Howard , 204 S.W.2d at 817. For these reasons, the position of county road foreman, as described here, is an "employment" and not an "office." Thompson , 617 S.W.3d at 431 (recognizing that not every employment is an office). For this reason alone, the incompatibility analysis begins and ends with the conclusion that the road foreman position is not an office. Thus, simultaneous service in these positions is not barred by the Constitution or statute.
An incompatibility inquiry, however, does not end with the constitutional or statutory prohibitions.
LaGrange City Council v. Hall Bros. Co. of Oldham Cty., Inc. , 3 S.W.3d 765, 769 (Ky. App. 1999). The common law "doctrine of incompatibility bars an individual from holding both public office and public employment where one position is subordinate to the other or is subject to the audit or review of the other."
Webb v. Carter Cty. Fiscal Ct. , 165 S.W.3d 490, 493 (Ky. App. 2005). As the Court of Appeals has explained, "two positions would be incompatible 'whenever one has the power of appointment to or removal from the other and whenever there are any potential conflicts of interest between the two (2), such as salary negotiations, supervision and control of duties, and obligations to the public to exercise independent judgment.'" Thompson , 617 S.W.3d at 435 (citing LaGrange City Council , 3 S.W.3d at 770 (footnote omitted)).
On the facts presented, there is no interrelationship that would render incompatible simultaneous service as a county water district commissioner and county road foreman. That is so because, as has been represented to this Office, neither position "has the power of appointment to or removal from the other." LaGrange City Council , 3 S.W.3d at 770. Water districts are administered by a board of commissioners, which controls and manages the affairs of a water district. KRS 74.020(1). On behalf of the district, the commission may, among other things, make contracts, prosecute and defend suits, and adopt bylaws. KRS 74.070. On the other hand, the county road foreman oversees and coordinates the work of road crews at the behest of the county judge and fiscal court. There is no indication that one position has any role in setting the salary of the other or supervising or controlling the other's duties.
For the reasons set forth above, it is the Attorney General's opinion that service as a water district commissioner is not functionally incompatible with the position of county road foreman.
Footnotes
Footnotes
1 See KRS 65A.010(9) (defining "special purpose government entity"); KRS 74.070(5) (requiring a water district's commission to comply with KRS 65A.010 to 65A.090).